.XXX Verdict in June; New Process, Comment Period in the Works

NAIROBI—In its penultimate act at the end of an exhaustive week-long Nairobi meeting, the ICANN board of directors voted unanimously Friday afternoon East Africa Time to approve a resolution postponing a final decision on ICM's application to run .XXX until the next meeting in Brussels, which takes place June 20-25. Sound familiar?

In the meantime, the board also directed ICANN CEO Rod Beckstrom and general counsel John Jeffrey to prepare a report within two weeks that explores transparent "process options" for dot XXX. The report will be posted to the ICANN site, after which a public comment will commence for a period of 45 days.

Before handing the mike over to board member Rita Rodin Johnston to introduce the resolution, ICANN board chairman Peter Dengate-Thrush said, "Most people will be well aware of the circumstances of the application on one of the sTLD rounds which the board rejected in 2007. They applied for reconsideration, the panel has issued its decision, saying that we made some mistakes in the way that was dealt with. Under the bylaws, we are required to deal with that."

Johnston added that the ICANN staff took the .XXX decision very seriously, saying, "We spent a bunch of time this week in our closed sessions discussing it. We had excellent papers from staff, and we intend to continue moving very quickly to making a decision."

She then read the resolution. Dengate-Thrush asked if anyone had anything to add. Getting no response, he called for a vote, which followed in the affirmative and the matter was quickly put to rest.

This scenario is exactly what ICM did not want to have happen. Ever since Feb. 18, when the independet review panel (IRP) released its report concluding that ICANN should finalize the ICM application, the company and its supporters—including many in the registry industry—have been in a tizzy arguing that the inability of ICANN to approve the thing at this meeting would do fatal damage to its legitimacy and possibly undermine the gTLD roll-out itself.

That ICANN might chart another course was anticipated by ICM chairman Stuart Lawley, who tried to head it off in a Feb. 25 letter to ICANN chair Dengate-Thrush.

"I sincerely hope you share my view and the view expressed by so many others in the past week—that the completion of the first ever Independent Review Process following the issuance of the Panel’s recent ruling is a defining moment for ICANN," wrote Lawley. " I am hopeful, as are others in the community, that ICANN will embrace the conclusions of the Panel and use them to improve its processes and restore confidence in ICANN as an institution.

"Further discussion about the merits of the proposal or questions regarding satisfaction of the eligibility criteria established for the 2004 sTLD round would be fundamentally inconsistent with the conclusions of the Panel," he continued, adding, "any attempt to 'reconsider' ICM’s application would be yet another violation of ICANN’s Bylaws in clear contradiction of the findings of the Panel."

ICANN's decision Friday to explore "process options" will likely be construed by Lawley to be the same as "revisiting," especially in light of the panel's conclusion that the sponsorship criteria was settled in 2005. Indeed, a looming public comment period—the very definition of revisiting the sponsorship question—would seem to be the antithesis of what ICM wanted.

It remains to be seen whether ICANN's actions will be enough to spur Lawley to pursue further legal action, a somewhat veiled threat he delivered to Dengate-Thrush: "Accordingly, and with respect, I hope you will understand that we must protect our rights if it appears that our efforts to work in partnership with ICANN are failing, once again, to bear fruit."

Regarding what sort of process options the board has in mind, the resolution language itself (full transcript below) provides some peek into its mind-set following the week-long deliberations, and reveals a board that in closed-door sessions throughout the week came to the conclusion that danger to its legitimacy exists with either a straight-up "yes" or "no" decision on the application as it now stands.

More immediately, however, the resolution expresses the board's determination to put its obligation to the independent review panel (IRP) behind it for good. It reads, in part:

"Whereas, in accordance with article IV, section 3.15 of ICANN's bylaws, where feasible, the board shall consider the IRP panel declaration at the board's next meeting; and

"Whereas the board has considered the IRP panel declaration throughout the week in Nairobi from 7 through 12 March 2010, and reviewed various paths toward conclusion; and

"Whereas, in the absence of a process for improving a sponsored TLD six years following the receipt of the original application, and given that the board wishes to create a transparent set of process options which can be published for public comment;

"It is resolved that the board has considered the Independent Review Panel's declaration in conformity with the ICANN bylaw requirements during its meeting in Nairobi and explored possible paths regarding ICM's application for dot XXX."

The board passed other decisive resolutions Friday—including the partition of registrars and registries—that reaffirmed its goal of expanding the number of top-level domains as it tries to meet the often conflicting needs of countries and cultures around the world. ICANN, under the thus-far efficient leadership of Beckstrom and Dengate-Thrush, made some very bold claims to independence this week. But perhaps no decision proved its mettle more than its grand finale resolution to stand firm against the pressure to approve .XXX on Friday.

The application remains very much alive, though, and all indications are that the board would like to see an amicable (and successful) resolution, assuming the process is not held hostage by unacceptable conditions.

Responding to the board vote postponing resolution of his application, Lawley seemed to accept the decision with equanimity, reports thedomains.com.

“We note the ICANN board resolutions and are looking forward to seeing the proposals in the next 14 days for the process to implement the independent review panel’s decision,” he said.